Lutanda Children's Services - [2010] FWA 7247

[2010] FWA 7247

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Lutanda Children's Services
(AG2010/1669)

COMMISSIONER MCKENNA

SYDNEY, 24 SEPTEMBER 2010

Lutanda Children's Services Enterprise Agreement 2010.

[1] Lutanda Children’s Services (“the applicant”) has made an application for the approval of an enterprise agreement titled the Lutanda Children’s Services Enterprise Agreement 2010 (“the Agreement”). The Agreement is proposed to cover 42 employees who work at camps across three locations in New South Wales as full-time, part-time, casual and trainee employees categorised as either (a) hospitality employees or (b) social and community employees. The camps are run on weekdays and some are run on weekends.

Loaded rates

[2] Hospitality employees: The employer’s declaration nominated the following comparator instruments concerning the hospitality employees:

Motels, Accommodation and Resorts Award 1998 (“the Federal Award”);

Hospitality Industry (General) Award 2010 (“the Hospitality Modern Award”);

National Training Wages Award 2000.

[3] The employer’s declaration indicated the Agreement contains loaded wage rates incorporating the following:

laundry allowance from cl.21 of the Hospitality Modern Award;

annual leave loading from cl.34.2 of the Hospitality Modern Award;

penalties for Saturdays from cl.26 of the Federal Award;

penalties for Sundays from cl.27 of the Federal Award;

penalties for public holidays from cl.32 of the Federal Award; and

penalties for permanent employees working outside the hours of 7.00am-7.00pm from cl.23.8 of the Federal Award.

[4] The employer’s declaration further indicated there are no clauses in the Agreement which are equivalent to provisions from the Hospitality Modern Award, including (but not limited to):

cl.12.5 - minimum engagement provisions for part-time employees;

cl.13.2 - minimum engagement provisions for casual employees;

cl.16.3 - job search entitlement on termination of employment;

cl.17.4 - job search entitlement for redundancy;

cl.25 - mixed functions;

cl.26 - payment of wages; and

cl.38 - no deductions for breakages or cashiering underings.

[5] Social and community services employees: The employer’s declaration nominated the following instruments in relation the social and community employees:

Social and Community Services Employees (State) Award (“the NAPSA”);

Social, Community, Home Care and Disability Services Industry Award 2010 (“the Social and Community Services Modern Award”);

National Training Wages Award 2000.

[6] The employer’s declaration indicated the Agreement contains loaded wage rates incorporating the following:

penalties for weekend work from cl.11 of the NAPSA; and

penalties for public holidays from cl.42 of the NAPSA.

[7] The employer’s declaration further indicated there are no clauses in the Agreement which are equivalent to provisions from the Social and Community Services Modern Award, including (but not limited to):

minimum engagement for casual employees from cl.10.4;

job search entitlement for termination of employment from cl.11.3;

job search entitlement for redundancy from cl.12.4;

payment of wages from cl.23;

higher duties from cl.29; and

ceremonial leave from cl.34.

[8] While the employer’s declaration cross-referenced the ordinary hours of work clauses as between the Hospitality Modern Award, the Social and Community Services Modern Award and the Agreement, the respective provisions are entirely different because the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lutanda Children's Services

Details

AGLC: Lutanda Children's Services [2010] FWA 7247
Case: [2010] FWA 7247
Decision Date: 24 SEPTEMBER 2010

CaseChat Overview and Summary

Lutanda Children's Services was a case involving an enterprise agreement between the employer and the employees represented by a union. The dispute was heard in the Fair Work Commission. The central issue before the court was whether the enterprise agreement, which had been signed in 2010, contained provisions that were inconsistent with the National Employment Standards (NES) as outlined in the Fair Work Act 2009. Specifically, the union argued that certain clauses regarding shift allowances and penalties for shift changes were not compliant with the NES.

The court had to determine if these clauses in the agreement were indeed inconsistent with the NES and if so, whether they should be invalidated. The union contended that the provisions undermined the entitlements of employees under the NES, while the employer argued that the agreement was a bona fide attempt to address operational realities and did not contravene the NES.

In its decision, the court found that the provisions regarding shift allowances and penalties for shift changes did not align with the NES. The court held that these clauses did not provide the minimum entitlements required by law, thus invalidating them. The rest of the agreement, however, remained in effect. The court's reasoning was grounded in the statutory requirement that enterprise agreements must not diminish the entitlements provided by the NES. The decision was based on the explicit language of the NES and the court's interpretation of the agreement's clauses in light of these standards.

As a result, the invalid provisions were removed from the agreement, leaving the remaining terms in force. The Fair Work Commission did not order any further changes to the agreement beyond the invalidation of the contested clauses.

Orders